Child Support and The Family Law Act

The
Family Law Act applies to legally married as well as common law couples who have children
and decide to separate and it also applies to individuals who have had
children together but who were never in a relationship.

It provides a very thorough and detailed set of rules to help determine
entitlement to child support and the appropriate amount that will be awarded
by making reference to the guidelines found in the regulations.1

Under s. 31(1) every parent, who is capable of doing so, has an obligation
to provide support for his or her unmarried child, if that child is:

a minor, or

enrolled in a full time program of education.

Subsection (2) states that the obligation does not extend to children who
are 16 years of age or older and who have voluntarily withdrawn from parental
control. For example, if a child is 17 years old and decides to leave
home to avoid the curfew imposed by his or her parents then that child
cannot apply to court for support because the withdrawal was voluntary.

However, in situations such as that found in a 1989 case decided at the
Ontario Provincial Court withdrawal will not be found to be voluntary
and support will be awarded. In this case, a 19 year old daughter was
forced to withdraw from her mother and step-father’s care due to
the tension and stress the unbearable living situation was causing her.
Her step-father was abusive towards her and her mother was passive in
that she did not attempt to intervene. The three of them lived together,
however, for 2 years there was no communication between the daughter and
her step-father. She finally moved into her grandmother’s home and
applied for support and it was granted because
“if the child is driven from parental control due to physical and
emotional abuse then the choice to withdraw from control is not voluntary
but rather necessary to ensure the physical and mental well-being of the
child who cannot be forced to remain there.” Recall then that the
Divorce Act allows claims for support to be brought for children under the age of
majority (i.e.18 years of age or less) whereas this Act contemplates the
termination of the obligation at a younger age provided they choose to
withdraw from the care of their parents.

Unfortunately, this Act does not contemplate situations where there is
an adult child who suffers from an illness or disability and so we are
unsure as to whether or not child support will be awarded in such a situation.

S. 1 defines both “child” and “parent”:

Definitions 1. (1) In this Act,
“child” includes a person whom a parent has demonstrated a
settled intention to treat as a child of his or her family, except under
an arrangement where the child is placed for valuable consideration in
a foster home by a person having lawful custody;

“parent” includes a person who has demonstrated a settled intention
to treat a child as a child of his or her family, except under an arrangement
where the child is placed for valuable consideration in a foster home
by a person having lawful custody;
The expression “settled intention” requires that to qualify
as a parent, the individual must show more than a mere display of common
courtesy or hospitality towards the child and instead
there must be both cohabitation and a connotation of permanency to the
relationship.

However, you should note that generally “a settled intention”
will not be found to have been formed if the true situation is not known
by the parent. According to recent Ontario decision, a father’s
mistaken belief that the child was his biological son together with “the
known and assumed obligation imposed by law on a parent to support his
child cannot by itself give rise to the finding of a settled intention.”

Instead, the entire relationship needs to be reviewed by the courts in
order to find a conscious intention to stand in the place of a parent
based on actual knowledge. In this case a husband was suspicious of the
paternity of one of the children born during his marriage and so he ordered
a paternity test which confirmed his suspicion. Afterwards, his behavior
changed drastically towards the child. The court found that no settled
intention was present and so he was not required to pay support.

However, the law in this area is unsettled as there are other cases in
Ontario that have taken a fundamentally different approach. Another Ontario
decision from 2005 stands for the proposition that despite the presence
of “paternity fraud” a step-father cannot evade his support
obligations. The judge in this case stated that: “the appropriate
question to ask is whether the relationship that existed at the time that
the family was functioning as a unit, up until separation, was one in
which the father treated the child as his own. To permit a father, in
a sense, to ‘backdate’ his decision to parent the children
ignores completely the reality of the children’s lives. Although
the father may have made a different decision had he been advised of the
facts at the time of the child’s birth, the fact is that he was
a parent to the child for many years.” Ultimately, the best interests
of the children, and the continued receipt of financial support from the
non-biological parent, trump the “conscious settled intention”
test mentioned above. Although this may seem unfair since the step father
will be required to bear an economic burden as a result of the deceit
suffered, the judge in an Ontario decision rendered in 1987 stated that
the fraudulent behavior of a mother was a factor to be taken into consideration
when determining the quantum and duration of the support payments.

If you refer back to s. 5 of the guidelines the amount of support that
a person who stands in the place of a parent is expected to provide is
that which the court considers appropriate, having regard to the Guidelines
and any other parent’s legal duty to support the child. Therefore,
an award may be ordered that is substantially less than the guidelines amount.

Also, as discussed above under the
Divorce Act section, a parent may apply for a declaration of parentage under s. 4(1) the
Children’s Law Reform Act. The s. 8(1) presumptions and the courts powers to order blood and DNA
tests under s. 10(1) apply as well.

Therefore, based on the obligation found in s. 31(1) you may bring an application,
under s. 33(1) for child support to either the Ontario Court of Justice,
the Superior Court of Justice or the unified Family Court and the court
may order that support be paid as well as determine the amount to be paid
in accordance with the
Child Support Guidelines.

If possible, i.e. if both parties are willing, you may
mediate or arbitrate any matter relating to support and you may also choose to include it in
an agreement. It is not necessary that all matters go to court.

In order for the court to determine the duration and amount of child support
it is necessary that the all financial statements outlining the incomes
of the parties be provided and it is required by law that these statements
be verified by oath or statutory declaration.2

S. 34(1) gives the court the power to make an order that is final or temporary
and also lists the various options that a court may choose from when making
the order:

Powers of court 34. (1) In an application under section 33, the court may make an interim
or final order,
(a) requiring that an amount be paid periodically, whether annually or
otherwise and whether for an indefinite or limited period, or until the
happening of a specified event;
(b) requiring that a lump sum be paid or held in trust;
(c) requiring that property be transferred to or in trust for or vested
in the dependant, whether absolutely, for life or for a term of years;
(d) respecting any matter authorized to be ordered under clause 24 (1)
(a), (b), (c), (d) or (e) (matrimonial home);
(e) requiring that some or all of the money payable under the order be
paid into court or to another appropriate person or agency for the dependant’s benefit;
(f) requiring that support be paid in respect of any period before the
date of the order;
(g) requiring payment to an agency referred to in subsection 33 (3) of
an amount in reimbursement for a benefit or assistance referred to in
that subsection, including a benefit or assistance provided before the
date of the order;
(h) requiring payment of expenses in respect of a child’s prenatal
care and birth;
(i) requiring that a spouse who has a policy of life insurance as defined
under the Insurance Act designate the other spouse or a child as the beneficiary
irrevocably;
(j) requiring that a spouse who has an interest in a pension plan or other
benefit plan designate the other spouse or a child as beneficiary under
the plan and not change that designation; and
(k) requiring the securing of payment under the order, by a charge on
property or otherwise.

The purposes of an order for child support are listed under s. 33(7):

(7) An order for the support of a child should,
(a) recognize that each parent has an obligation to provide support for
the child;
(b) apportion the obligation according to the child support guidelines.

Unlike the
Divorce Act this Act states that the application may be brought by a dependent, a
dependent’s parent or one of the agencies listed under s. 33(3)(a)-(e)
if that agency is providing, has provided or will be required to provide
social assistance to the dependent. “Dependent” is defined
in s.29 as: a person to whom another has an obligation to provide support
under this part.”

If you and your former spouse/partner choose to include support arrangements
in an agreement you should be aware that under this Act and according
to s. 33(4) a provision determining or waiving support can be discarded
under the following three circumstances:

if the provision for support or the waiver of the right to support results
in unconscionable circumstances;

if the provision for support is in favor of or the waiver is by or on behalf
of a dependant who qualifies for an allowance for support out of public money; or

if there is default in the payment of support under the contract at the
time the application is made.

However, where an agreement contemplating child support is not problematic
and the courts choose not to set it aside the parties should file it with
the court, under s. 35(1) so that it may be enforced as stipulated in s. 35(2).

Recall that a child may be entitled to support from more than one parent
in situations where there is a biological parent as well as a step-parent
who has demonstrated a settled intention to stand in the place of a parent.
Unlike the
Divorce Act, this Act imposes the obligation statutorily and under s. 33(5)-(6) third
parties may be added to applications if it is shown that they also have
an obligation to provide support to the same dependent.

Deviation from the Child Support Guidelines

Although subsection (11) states that when making an order for child support
the courts must use the guidelines, subsection (12) and (14) provide two
exceptions. The first is that the courts may deviate from the table amounts
found in Schedule I of the guidelines if it is satisfied that:

that special provisions in an order or a written agreement respecting the
financial obligations of the parents, or the division or transfer of their
property, directly or indirectly benefit a child, or that special provisions
have otherwise been made for the benefit of a child; and

that the application of the child support guidelines would result in an
amount of child support that is inequitable given those special provisions.

Therefore, to be “special” the provisions must be out of the
ordinary or unusual and must have actually, objectively helped the child.
To determine whether this is so the courts must examine if the children
have benefitted, directly or indirectly, by the terms of the separation
agreement to the extent that their right to be supported by both parents
should be extinguished.

The second exception provides that a different amount may be ordered on
the consent of both parties where:

reasonable arrangements have been made for the support of the child to
whom the order relates; and

where support for the child is payable out of public money, the arrangements
do not provide for an amount less than the amount that would be determined
in accordance with the child support guidelines.

However, the courts under subsection (13) are required to give reasons
when they choose to order an amount that differs from the table amount
under subsection (12).

Variation Orders

Variations to orders or agreements are brought under s. 37 of this Act.
Therefore, if you are able to convince the court that there has been a
material change in your circumstances3 or if new evidence has been discovered that was not previously available,
and which relates to child support, then the court may vary, discharge
or suspend a previous order or agreement under s. 37(2.1)(a)-(c). However,
if a new order is made for a different amount of child support, it must
still comply with the table amounts listed in the guidelines unless it
falls under subsections (2.3) and (2.5)-(2.6) which create exceptions
for special provisions and reasonable arrangements.

Exception: special provisions (2.3) Despite subsection (2.2), a court may award an amount that is different
from the amount that would be determined in accordance with the child
support guidelines if the court is satisfied,
(a) that special provisions in an order or a written agreement respecting
the financial obligations of the parents, or the division or transfer
of their property, directly or indirectly benefit a child, or that special
provisions have otherwise been made for the benefit of a child; and
(b) that the application of the child support guidelines would result
in an amount of child support that is inequitable given those special
provisions.

Reasons (2.4) Where the court awards, under subsection (2.3), an amount that is
different from the amount that would be determined in accordance with
the child support guidelines, the court shall record its reasons for doing so.

Exception: consent orders (2.5) Despite subsection (2.2), a court may award an amount that is different
from the amount that would be determined in accordance with the child
support guidelines on the consent of both parents if the court is satisfied that,
(a) reasonable arrangements have been made for the support of the child
to whom the order relates; and
(b) where support for the child is payable out of public money, the arrangements
do not provide for an amount less than the amount that would be determined
in accordance with the child support guidelines.

Reasonable arrangements (2.6) For the purposes of clause (2.5) (a), in determining whether reasonable
arrangements have been made for the support of a child,
(a) the court shall have regard to the child support guidelines; and
(b) the court shall not consider the arrangements to be unreasonable solely
because the amount of support agreed to is not the same as the amount
that would otherwise have been determined in accordance with the child
support guidelines.

Section 37(1) lists which individuals and agencies may bring an application
for variation:

Application for variation 37. (1) An application to the court for variation of an order made or
confirmed under this Part may be made by,
(a) a dependant or respondent named in the order;
(b) a parent of a dependant referred to in clause (a);
(c) the personal representative of a respondent referred to in clause (a); or
(d) an agency referred to in subsection 33 (3).

You should also be aware that subsection (3) places a limitation on variation
orders and states that no application for variation can be made within
six months of the granting of the previous order, unless the court allows it.

One final thing to note that is interesting is that similarly to the
Divorce Act, under s. 38(1)-(3), priority is given to child support.

1.However, if a legally married yet separated couple makes the decision to
divorce then according to s. 36(1) when a divorce proceeding is brought
under the Divorce Act then an application for support under the Family
Law Act is stayed unless a divorce is granted without support being determined.
In that case the judgment under the Family Law Act continues in force,
see: s. 36(3).2.See: s. 41 and s. 41(1)-(4) allows the court to contact other individuals,
such as employers, to obtain information relating to a party’s income
to verify that the information in the financial statements is correct.3.S. 14 of the Child Support Guidelines provides some insight into what will
be considered a “change in circumstances”:

In the case where the amount of child support includes a determination
made in accordance with the table, any change in circumstances that would
result in a different order for the support of a child or any provision thereof.

In the case where the amount of child support does not include a determination
made in accordance with a table, any change in the condition, means, needs
or other circumstances of either parent or spouse or of any child who
is entitled to support.

In the case of an order made under the Divorce Act (Canada) before May
1, 1997, the coming into force of section 15.1 of that Act, enacted by
section 2 of chapter 1 of the Statutes of Canada, (1997).

In the case of an order made under the Act, the coming into force of subsection
33 (11) of the Act.

*Free consultations are for new clients only.The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
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